Summary
In Mullett, defendant appealed from judgments revoking his probation on grounds that the trial court lacked subject matter jurisdiction to revoke his probation after the probationary period had expired.
Summary of this case from State v. HighOpinion
No. COA12–862.
2013-01-15
STATE of North Carolina v. Joshua MULLETT, Defendant.
Attorney General Roy A. Cooper, III by Assistant Attorney General Brian D. Rabinovitz, for the State. Richard Croutharmel for defendant-appellant.
Appeal by defendant from judgments entered on or about 17 April 2012 by Judge Milton F. Fitch, Jr., in Wilson County Superior Court. Heard in the Court of Appeals 2 January 2013. Attorney General Roy A. Cooper, III by Assistant Attorney General Brian D. Rabinovitz, for the State. Richard Croutharmel for defendant-appellant.
STROUD, Judge.
Defendant Joshua Mullett appeals from the judgments entered upon the revocation of his probation. Defendant contends the trial court lacked subject matter jurisdiction to revoke his probation after the probationary period had expired. We vacate the judgments revoking defendant's probation.
On 28 June 2010, defendant pled guilty to two counts of impaired driving. The district court imposed eighteen months of supervised probation. On 19 December 2011, defendant's probation officer signed probation violation reports alleging three probation violations. In district court, defendant admitted to violating probation, but gave notice of appeal to superior court. In superior court, defendant admitted to two of the violations. On 17 April 2012, the trial court entered judgments revoking defendant's probation in both cases and activating the suspended sentences of twelve months and sixty days imprisonment. Defendant appeals.
Defendant's sole argument on appeal is that the trial court lacked jurisdiction to revoke his probation after the period of probation had expired because the State failed to prove it had filed the probation violation reports within the period of probation, in violation of N.C. Gen.Stat. § 15A–1344(f)(1) (2011). We agree.
The trial court may revoke a defendant's probation after the period of probation has expired, if: “Before the expiration of the period of probation the State has filed a written violation report with the clerk indicating its intent to conduct a hearing on one or more violations of one or more conditions of probation.” N.C. Gen.Stat. § 15A–1344(f)(1) (emphasis added). If the State fails to comply with the terms of N.C. Gen.Stat. § 15A–1344(f), the trial court lacks jurisdiction to revoke the defendant's probation and impose an active sentence. State v. Black, 197 N.C.App. 373, 377, 677 S.E.2d 199, 202 (2009).
In civil matters, “a paper writing is deemed to be filed within the meaning of the law when it is delivered for that purpose to the proper officer and received by him, and it is not necessary to the filing of a paper that it shall be endorsed as having been so filed.” Bailey v. Davis, 231 N.C. 86, 89, 55 S.E.2d 919, 921 (1949) (quotation marks and citation omitted). In a criminal case, however, the State must prove jurisdiction beyond a reasonable doubt. State v. Petersilie, 334 N.C. 169, 175, 432 S.E.2d 832, 835 (1993) (citation omitted). Accordingly, “[i]n the absence of a file stamped motion or any other evidence of the motion's timely filing” the State has failed to establish the trial court's jurisdiction to revoke a defendant's probation. State v. Moore, 148 N.C.App. 568, 570, 559 S.E.2d 565, 566 (2002).
In this case, the State has failed to prove the trial court's jurisdiction beyond a reasonable doubt. Section 15A–1344(f)(1) requires that the violation reports must be filed before the period of probation expires. Although the violation reports in this case are signed by the probation officer, a deputy clerk of court, and defendant, none of those signatures verify that the reports were timely filed. The reports are not file stamped, nor is there other evidence in the record indicating that the reports were actually filed within the period of probation. Without a file stamp, or other evidence beyond a reasonable doubt that the reports were timely filed, the trial court lacked jurisdiction to revoke defendant's probation. Id. Accordingly, we vacate the judgments revoking defendant's probation.
VACATED. Chief Judge MARTIN and Judge HUNTER, JR., ROBERT N. concur.
Report per Rule 30(e).